SANGUBHOTLA VENKATRAMAIAH Vs. KALU VENKASWAMY

JUDGEMENT

(1.) The plaintiff-appellant filed the suit, out of which the Second Appeal arises, for redemption of usufructuary mortgage dated 25-6-1946 and for possession. The plaintiff was the mortgagor, Kale Papaiah, husband of 4th defendant and father the defendants 1 to 3 was the mortgagee. The mortgage was for a sum of Rs. 200 and it was in respect of land in Kankanampadu Shortrium village, an estate which was later taken over under the provisions of the Madras Estates (Abolition and Conversion into Ryotiwari) Act. The plaintiff is one of the erstwhile Shortrimdars of the village. The defendants pleaded that they and their predecessors had occupancy rights in the land, that the plaintiff and his predecessors were landholders, that the plaintiff had borrowed a sum of Rs. 200 from Papaiah mortgaging his melwaram interest in the land, that the recitals in the mortgage deed were inoperative and that the recitals had only been made to give a form to the deed of mortgage. They pleaded that the occupancy rights possessed by the could not be extinguished by the mortgage. The land was never the private land of the plaintiff. The only interest which the plaintiff had in the land was the melwaram right which ceased on the estate being taken over by the Government under the provisions of the Estates Abolition Act. The defendants also pleaded that they had also been granted rough patta under Section 11 of the Estates Abolition Act.

(2.) It was found by the trial Court and the first appellate Court that the land which was the subject-matter of the mortgage was not the private land of the plaintiff and that what was mortgaged by the plaintiff was only his melwaram interest in the land. The land was ryoti land in which the defendants and their predecessors had occupancy rights. The melwara right of the plaintiff became extinguished on the taking over of the estate by the Government and the plaintiffs right of redemption ceased. The concurrent finding of the lower Courts that the land was ryoti land i which the defendants and their predecessors had occupancy rights and not private land of the plaintiff was not challenged before the learned single Judge who heard the Second Appeal in the first instance. Indeed the concurrent finding of fact could not be challenged in Second Appeal.

(3.) Sri Veerabhadrayya raised two questions before the learned single Judge: (1) The defendants who were mortgagees were estopped from contending that the mortgagor had no right to redeem the mortgage. (2) The suit should have been dismissed as premature, without any adjudication on the merits as the application of the plaintiff for grant of ryotiwari patta was pending enquiry under Section 15 of the Estates Abolition Act. The learned single Judge rejected the first contention. In regard to the second contention, he was of the view that the suit was not barred and need not be dismissed as premature. The decision of a Division Bench of this Court in Sri Someswaraswari Varu v. Sri Rajitam, (1971) l Andh WR l4 was pressed for the acceptance of the learned Judge. He was of the view that the decision required reconsideration. He, therefore, directed that the papers be placed before the learned Chief Justice for appropriate orders. The matter was then considered by a Division Bench consisting of Kondaiah and Gangadhara Rao JJ., and they directed that the matter should be considered by a Full Bench. This is how the matter has come before us.